How To Draft A Mediation Brief

QUESTION:
Hello Mike,

You offer as a suggested question, “What makes a good mediation brief?” Yes, I’d like your comments on that.

Thank you.

–Curious Litigant–


ANSWER:
Dear Curious.  Great question.  I wish I had thought of it.

And let me say at the outset that while I am, of course, right with this answer, I welcome feedback from others, including my mediator friends out there, who think wrongly…I mean differently than I.

But with that said, I have two answers for you.  The first is the standard, generic answer that will work just fine for most mediation briefs.  I’ll share that below in this post.  But if you are willing to go a little deeper into mediation psychology and toy with the possibilities of a more effective mediation brief, take a look at answer No. 2, which I’ll post separately next.

Answer No. 1:  The Normal Mediation Brief:

Mediations are not summary judgments, so don’t take your old summary judgment brief, slap a new cover page and submit it as a “Mediation Brief.”  Seriously, we don’t need all that law and argument.  While it might do in a pinch, so will a simple phone call with your mediator, and the phone call will invariably be more effective and useful.

Instead, try to think like a mediator and give him (or her) what he (or she) needs to do his (or her) job.  Sure mediators are looking to understand the basic facts, law, and procedural posture of the case; but they are much more interested in discovering the BS – the Barriers to Settlement (what did you think I meant?).

Mediators are looking to discover the key one or two factual issues that are really in dispute; the one or two legal issues that the parties disagree on.  They want to know who’s calling the shots in each room and what those people are thinking.  What are the stakeholders really interested in.  They want to know what the parties have already discussed in terms of settlement, and what they each think the problem is.  In short, we mediators want to help the parties settle their own case – we don’t need a detailed trial brief to help you do that.

Instead, I think most mediation briefs can be done in fewer words than this verbose answer — seriously three to seven pages should do it, even ones for patent or other complex cases.  And if you include the following topics, you will have provided your mediator with just about everything he (or she) needs to get the job done:

1)  A short description of the case and the key legal and factual issues.  This should not be long or detailed; just enough to introduce the dispute.  Remember, we are simple people….

2)  Status of the litigation. Where in the process is the case?  What is the status of depositions and other discovery?  When is trial?

3)  A summary of settlement discussions to date, if any.  Who said what and what was the response?  Include each party’s last settlement position.

4) Roadblock to Settlement: Describe what you believe to be the current roadblock to settlement.  This is generally very helpful when the attorney puts some thought into it (not that “the current roadblock to settlement is the opposing attorney’s asinine legal theories and his client’s fantastical expectations” isn’t helpful, but….  A little more introspection would be nice.)

5)  Any unusual dynamics:  Describe any dynamics that might be impacting the views, beliefs, desires and positions of the parties, including personality conflicts (of parties or counsel) or secret needs or desires of the parties.  This is generally the most valuable to your erstwhile mediator…the hardest to discern for the advocate, perhaps, but the most valuable nonetheless.

Again, this can be done in 5 pages.  We don’t need detailed briefs; we just need to be apprised of what’s going on.

Plus, if we are doing our jobs well, we will have had pre-mediation conference calls with each side, so we can delve into some of these topics in more detail if they seem particularly pertinent.

Confidential or not? I know this is your next question.  Should you share your brief with the opposing party, or submit it to the mediator confidentially?  The answer is, in good legal fashion:  It depends.  If the brief is going to be discussing what a jerk the opposing party or attorney is, or what the client’s secret need is for resolving the case, then a confidential brief sounds pretty good.  Items 5 and 6 above in particular are ripe for confidential submission to the mediator.  After all, the goal of the brief is to assist the mediator, not inflame the opposing party.

On the other hand, if part of the impasse is the other party’s perceived failure to appreciate the strength of the legal case, then exchanging polite briefs, especially responding to items 1-4 above, might be the answer.

And yes, you can exchange part of the brief, and submit part confidentially to the mediator.

Now, Curious, aren’t you glad you asked?

And is it possible there could be any more to say about mediation briefs?  I mean seriously, how complicated can this be?

A little more complicated as you’ll see in the next post with Answer No. 2

Answer No. 2:  For the Advanced Mediation Advocates:

In my last response, I gave you the yeoman’s mediation brief – the brief that will generally work for most cases.  It’ll get the job done.

But can you do better?  This is a question I ask myself all too frequently.  With respect to all aspects of the mediation process, from mediator selection, to briefing, to caucuses, to negotiating, to settlement, can you do better?

I think for briefing (actually for all phases of the mediation), the answer is yes.

And with briefing, as with the other steps in the mediation process, you first need to consider your goal.  Why even draft a brief?  What’s the purpose?  Why not just call the mediator on the phone and tell him (or her) why your side is right, the other side is wrong, and how you’ll win at trial?  It would be faster, plus you could answer questions.  (You should do this, by the way, if the mediator doesn’t initiate a call on his or her own.)

In my view, the goal of the mediation brief is to help the mediator understand the dispute so he (or she) can be as effective as possible in assisting the parties explore settlement.  The brief’s focus is not to convince the mediator that your side will win at trial, though that could be part of the message.  Nor is it to uncover every legal argument possible, though some of that may be helpful.  Instead, the focus should be on helping the mediator understand THE DISPUTE, which is different than the legal claims.

Lawyers tend to focus on the legal claims, which is not surprising considering they are representing their clients in a court of law and they spent all that time in law school learning the law…or at least where the law is stored (in my day, it was stored in books…).  Lawyers need to be focused on the legal claims.  But more often than not, the clients are focused on the dispute.  Something bad happened to them and they are using the legal process to try to make something right.  They are focused on the injury and the remedy.

What are the mediators focused on?  Resolution.  We want to find that settlement that both sides will prefer to trudging further towards trial.  Legal issues are useful.  So are factual issues.  So are true motivations, needs, desires, wishes.

So back to briefs, what will really help the mediator?  What can you share in a mediation brief that will help the mediator help you settle your case?  Easy:  Help the mediator understand the nature and cause of the impasse.  Get past the impasse and you can resolve the lawsuit.

Which means you first need to figure out the cause of the impasse yourself.

This sounds simple, but it actually requires a little introspection, reflection, and investigation.

The cause of the impasse might be a misunderstanding of the legal issues (yours or theirs), or a misperception of the facts (again, your misperception or theirs), or it might be something else altogether.  Understanding the cause of the impasse is the first step towards resolving the dispute.

Think of it this way.  How do you stop a baby from crying?  Well, that depends.  What’s the cause of the tears?  Is he hungry…or stinky?  Once you figure out the cause of the tears, the solution is easy.  (Unless you’re me, then the solution is the same no matter what:  “Here you go, dear.”)

Let’s look at a real life example.  In one recent case, a Russian immigrant was suing a former employer for wrongful termination, claiming that he was terminated as a result of his ethnicity.  The fact that this plaintiff was a mortgage broker and was laid off with scores of other brokers during the depths of the banking crisis, and hadn’t closed a loan in the 9 months he had been with this company did not seem to register with the plaintiff.  The fact that the plaintiff had brought his son into the company as an assistant, and the plaintiff was fired in front of his son DID register with the plaintiff, as did the fact that this immigrant had risen through the ranks to become a successful businessman and an important community figure (at least in his own mind).

Why does this case exist, and why hasn’t it settled yet?  There could be any number of factors driving this dispute.  Figuring out the actual drivers is your first step in approaching mediation, and will guide your mediator selection and brief drafting.

For instance, the driver of this dispute (the cause of the impasse) could be:

— Financial (“Now that I’m unemployed, I have no money and no health insurance.”  Or “The company is broke, and couldn’t pay what the plaintiff is asking even if it wanted to”).

— Emotional (“I hate that guy and am not paying him a penny”).

— Attorney Chest Pumping (“I’m better than my opposing counsel…and I’m going to prove it”).

— Lack of attention by stakeholders (“the adjuster with authority is on vacation…again”).

— Business realities (“my cash flow is seasonal–and this ain’t the season”).

— Informational (“they claim they have a witness to the alleged discrimination, but we don’t know who it is”).

— Legal (“their theory of damages is, respectfully, hogwash.  The plaintiff got a new job at a higher salary the day after his position was terminated”).

— You or your firm (“I need trial experience.  “I’ve been too busy”).

— Your client (“I deserve $1 billion for their blatant discrimination”).

— The opposing attorney or client (“He needs to bill this case a little longer….  And besides, he’s not an employment lawyer so doesn’t get what’s going on”).

In other words, spending time on a mediation brief that addresses all of the legal reasons why you win will probably not have much impact on a dispute that is driven by ego, culture, or the defendant’s inability to pay a judgment.  Convincing the mediator that you have a summary judgment case, and asking that the mediator “pound this into the plaintiff’s thick skull,” will not really help a dispute driven by emotion and a sense of betrayal.

In a personal injury case, a brief focused on the negligence standard will not really help if the dispute is over whether the injury is a pre-existing one.

So what helps the mediator?  What should you include in your brief?  Sure give a brief summary of the law and facts.  Sure tell why you’ll win at trial, or at summary judgment.  Sure tell about the killer witness you have.  But then focus on the cause of the impasse.  Explain what is REALLY going on…what is lurking below the surface of the legal case.  Explain the dynamics driving the conflict.  Let the mediator know what he or she is likely to be faced with once the mediation gets rolling.

In the example above, a defense brief containing a short legal analysis of wrongful termination in California, combined with a few facts confirming cause for termination and lack of damages is helpful.  But that doesn’t explain why this case exists…or how a mediator might approach it for resolution purposes.  Letting the mediator know of the cultural issues at play, on the other hand, as well as the family issues involved, allows the mediator to be more sensitive at the outset and to explore ways to address those issues in the context of an overall settlement.  The plaintiff could do the same in his brief.

And then suggest some solutions.  If you have some ideas for addressing the true drivers of the dispute, don’t be shy.  Share them with your mediator.  Any ideas are useful in getting everyone thinking of ways to address the underlying problems.

So help your mediator help you.  Give him what he needs to do his job.  Help her understand what’s driving the dispute.  Share with him your insights.  Propose some solutions.  And then be prepared to work towards that common goal—a good night’s sleep.

2 Responses to How To Draft A Mediation Brief

  1. Michelle says:

    Hi Mike,
    Defense counsel wants to go to mediation in a medical malpractice case which has been going on for about six years. They have thrown everything at me; Motion to dismiss, continuance, MSJ, and a bankruptcy filed by the beloved doctor. Yes I am pro se but everything has been ruled in my favor. My question is…I have proof that the expert medical witness in his sworn declaration for the MSJ perjured himself. It is so apparent and unbelievable the Medical Board wants to press charges against him. They also refused a more than generous 998 two years ago. Should I include this in my mediation brief? I am just starting to educate myself on the mediation process and am having a difficult time finding something similar. Thank you

  2. Mike Young says:

    Hi Michelle. You raise a good question. Just what should you include in a mediation brief? I’ve reread my initial post and I was right — it IS verbose. Sorry. It is also a little too complicated. I think i can simplify it a little for you.

    I still think an overriding principle in drafting an effective mediation brief is to “think like a mediator.” And what do mediators think about? Pretty much just one thing — what can we do to help you resolve your dispute. So you want to provide the mediator with as much information as you can to help him or her do just that. (I know, not very helpful yet. But hang in there.)

    What does a mediator want? A few things. Background information for one. We want to know who you are, and how you got into this mess. Tell us what happened. Don’t worry about legal theories or litigation processes just yet; don’t worry about legal prose or fancy language. Just help us understand who the parties are, and how they ended up in this predicament. Tell us what happened to you and how it impacted you, and continues to impact you. And tell us what you can about the other side. (I know it’s hard, but at least try to be objective….)

    Tell us too what you are looking for. You are the one who brought this lawsuit, so what are you hoping to accomplish by it? What are your goals and how would you like to see the dispute resolved? What do you need in order to be able to put this dispute behind you.

    And tell us a little about the litigation. Remember that mediation is really a process that is very good at helping you develop options. You have a dispute and that dispute will end one of these days. There are any number of ways for it to end. A lawsuit is one way. You give up the right to decide to a judge or jury or arbitrator, and that person (or jury) will end the dispute by deciding either that you get a bunch of money, or that you get nothing. But either way, the dispute is over. Another way to resolve the dispute is to come up with your own outcome. Mediation is great for this. The mediator will help you explore possible settlement options; you get to be part of the development of those options; and in the end you can decide if the settlement option you have created in mediation is better for you than the trial/arbitration option that you currently have. So at the end of the day, you compare the best settlement you can get on the one hand, and the trial/arbitration option on the other hand, and you take the option you like better.

    The problem is, the parties generally do not have a realistic view of what that trial path really looks like. There is usually more risk to trial than the parties are generally willing to acknowledge prior to mediation. You need to have a realistic understanding of the trial/arbitration path if you are going to be able to make a wise decision in the mediation. For instance, is a $50,000 settlement a good deal or a bad one? It depends on what the alternative is. If the trial alternative is a really low chance of winning $75,000, then the $50k deal looks great. But if the trial alternative is a really high chance of winning $1 million, then the $50k deal looks terrible. So, in order to really understand what choice you have, you must have a realistic understanding of what that trial/arbitration path really looks like; not the trial path you want to have, or the trial path you think you have, but the trial path you actually have. The mediator will help you see this option more objectively.

    This is a long way of saying that the mediator will also need to know what the trial/arbitration path looks like so he or she can help you get a more realistic view of that option. So while this does not need to be a large part of the mediation brief, you should provide the mediator with a summary of the litigation, what legal claims are raised, what has happened in the litigation to date, what dispositive motions (like an MSJ) have been filed and ruled upon, what discovery has been completed, and when trial is.

    For a med. mal. case, you will also want to make sure the mediator understands what damages and injuries you have suffered.

    And of course, if there have been prior settlement discussions, those should be summarized for the mediator as well. Those can be very helpful in understanding what has happened and why.

    The mediation brief can and should be brief. Generally, if you have an experienced mediator, you don’t need to provide huge briefs and you generally don’t need long expositions on the law. Briefs can be informal as well. The mediator is looking for information, not a legal treatise or a Supreme Court opinion. There is no magic format. Just make it easy to read and easy to understand. If there are some important documents, you can include copies of those as exhibits, but be judicious with those. Don’t just attach copies of everything.

    And if you really want to make sure you provide your mediator with what he or she wants…pick up the phone and call. There’s nothing wrong with calling your mediator ahead of time to discuss the background facts and finding out what he or she might want in order to make the mediation process as valuable and helpful to you as possible. Mediators are just people, and generally some of the nicest people around. That’s why they become mediators…because they want to help.

    Good luck!

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